Sh. Bawa Brahm Dev Ji Trust, Jammu V. Commissioner of Income Tax (Exemptions), Chandigarh

ITA 158/ASR/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 0366 (ITAT-AMRITSAR)
• Duration Of Justice: 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-11-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2017-2018
• Appeal Filed On: 26-10-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M P S INGH LD
• Assessee Lawyers: VINAMAR GUPTA LD
• Keywords: Opportunity of being heard; Principle of natural justice; Set aside
• Section: 12AA; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, AMRITSAR (VIRTUAL COURT) BEFORE: SHRI. N.K. SAINI, VICE PRESIDENT AND SHRI N.K. CHOUDHRY, JUDICIAL MEMBER ITA NO. 158/ASR/2020 ASSESSMENT YEAR: 2017-18 SH. BAWA BRAHM DEV JI TRUST VILLAGE CHAK JADELI, P.O. TALOOR, TEHSIL AND DISTRICT: SAMHBA, JAMMU (J&K) [PAN NO: AANTS 8425N] VS. COMMISSIONER OF INCOME TAX (EXEMPTIONS), CHANDIGARH (APPELLANT) (RESPONDENT) APPELLANT BY : SH. VINAMAR GUPTA (LD. C.A .) RESPONDENT BY: SH. M. P. SINGH (LD. CIT- DR ) DATE OF HEARING: 25.11.2020 DATE OF PRONOUNCEMENT: 25.11.2020 ORDER PER N.K. CHOUDHRY, JM: THIS APPEAL HAS BEEN PREFERRED BY THE APPELLANT/ASSESSEE AGAINST THE ORDER DATED 23-07-2020 IMPUGNED HEREIN, PASSED BY THE LD. CIT(E), CHANDIGARH U/S. 12AA(1)(B)(II) OF T HE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT) FOR THE AF ORESAID ASSESSMENT YEAR, WHEREBY THE LD. CIT(A) DISMISSED THE APPELLANTS APPLICATION FILED U/S 12 A OF THE ACT. 2. FROM THE IMPUGNED ORDER IT REFLECTS THAT THOUGH THE LD. CIT(A) FIXED THE CASE FOR HEARING ON VARIOUS DATES, HO WEVER ON MOST OF THE DATES, THE ASSESSEE NEITHER ATTENDED THE APPE LLATE ITA NO. 158/ASR/2020 BAWA BRAHM DEV JI TRUST V. CIT(E) 2 PROCEEDINGS NOR FILED ANY ADJOURNMENT APPLICATION AND THEREFORE THE LD. CIT(E) REJECTED THE APPLICANTS APPLICATION FI LED U/S 12AA OF THE ACT, WHILE OBSERVING THAT KEEPING IN VIEW THE UNRESPONSIVE ATTITUDE OF THE APPLICANT, IT IS SAFE TO CONCLUDE T HAT THE APPLICANT HAS FAILED TO DISCHARGE ITS ONUS, THIS BEING A BENEFICI AL CLAUSE FOR THE APPLICANT, TO PROVE THAT ITS INCOME IS FREE FROM EX IGIBILITY OF TAXES. IN THE LIGHT OF THE ABOVE, THE APPLICATION FOR GRANT O F REGISTRATION U/S 12AA IS ACCORDINGLY REJECTED. 3. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE ORDER IMPUGNED HEREIN. IT IS THE CLAIM OF THE APPELLANT THA T NO REASONABLE OPPORTUNITY OF BEING HEARD WAS GIVEN TO TH E APPELLANT AS OFFICE OF THE APPELLANT SITUATES AT SAMB A, JAMMU AND KASHMIR WHICH IS FAR AWAY FROM LD. COMMISSIONER OFFI CE AT CHANDIGARH AND TIME GIVEN BY THE LD. COMMISSIONER WA S TOO SHORT AND LESSER THAT THE TIME IN WHICH ANY CORRESPONDENCE COULD REACH FROM CHANDIGARH TO SAMBA (J&K) IN LOCK DOWN PER IOD. IT WAS FURTHER CLAIMED BY THE APPELLANT THAT EVEN ENTIRE ACTIVITY IN THE COUNTRY INCLUDING UT OF JAMMU AND KASHMIR HAS CRIPPL ED DUE TO PANDEMIC SITUATION AND ALL SOCIAL/RELIGIOUS PLACES/PL ACES OF WORSHIP WERE KEPT COMPLETELY CLOSED DOWN AS PER INSTRUCTIO NS ISSUED BY THE GOVERNMENT OF J & K. 4. FROM THE ORDER IT REFLECTS THAT AN OPPORTUNITY OF HE ARING WAS ACCORDED ON 22-11-2019 BY THE LD. COMMISSIONER WITH A REQUEST TO FILE DETAILS/CLARIFICATIONS ON 05-12-2019 WH ICH REMAINS UN-COMPLIED AND THEREAFTER AFTER A GAP OF 06 MONTHS A NOTHER OPPORTUNITY WAS ACCORDED TO THE APPELLANT ON 01-07-20 20 BY FIXING THE DATE OF HEARING 06-07-2020 AND AGAIN ON 10-07-2020. FROM THE LAST FIXATION DATES IT REFLECTS THAT THERE WAS GAP OF ONLY 03 DAY IN FIXING THE CASE FOR FINAL HEARING, WHEREAS I T IS ITA NO. 158/ASR/2020 BAWA BRAHM DEV JI TRUST V. CIT(E) 3 UNDISPUTABLE FACT THAT OFFICE OF THE ASSESSEE IS FAR AWAY FROM THE LD. COMMISSIONER OFFICE AT CHANDIGARH WHERE THE APPELL ANT WAS SUPPOSED TO JOIN AND THEREFORE THE APPELLANT COULD NOT GET PROPER AND REASONABLE TIME TO APPEAR AND REPRESENT I TS CASE BEFORE THE LD. COMMISSIONER. IT IS ALSO UNDISPUTED FACT THE DUE PANDEMIC ALMOST ALL SOCIAL/RELIGIOUS/WORSHIP PLACES WERE CLOSED DOWN AS PER INSTRUCTIONS OF GOVERNMENT, HENCE THIS COULD A LSO BE PLAUSIBLE REASON FOR NON-ATTENDING THE PROCEEDINGS. 5. IT IS TRITE TO SAY THAT EVERY PERSON HAS THE RIGHT TO SPEAK AND BE HEARD WHEN ALLEGATIONS ARE BEING PUT TOWARDS H IM OR HER. IF NO OPPORTUNITY HAS BEEN GIVEN TO THE PARTY EFFECTE D, THEN IT SHALL AMOUNT TO VIOLATIONS OF THE PRINCIPLES OF NATURAL JUSTICE, WHICH EMBEDDED IN LATIN WORDS AUDI ALTERAMPARTEM WH ICH MEANS HEAR THE OTHER SIDE, OR NO MAN SHOULD BE CONDE MNED UN-HEARD OR BOTH THE SIDES MUST BE HEARD BEFORE PASSIN G ANY ORDER. THE PRINCIPLE OF AUDI ALTERAMPARTEM IS THE BA SIC CONCEPT OF THE PRINCIPLE OF NATURAL JUSTICE AND HAS NOT EVOLVED FROM THE CONSTITUTION BUT EVOLVED THROUGH CIVILIZATION AND MA NKIND AND IS THE CONCEPT OF COMMON LAW, WHICH IMPLIES FAIRNESS, REASONABLENESS, EQUALITY AND EQUITY. IN INDIA, THE PRI NCIPLES OF NATURAL JUSTICE ARE THE GROUNDS OF ARTICLE 14 AND 21 O F THE CONSTITUTION. ARTICLE 14 ENSHRINES THAT EVERY PERSON SHO ULD BE TREATED EQUALLY. IN THE LANDMARK CASE OF MANEKA GANDHI VS. THE UNION OF INDIA (1978 AIR 597), IT HAS BEEN HELD BY CONSTITUTION BENCH OF THE APEX COURT THAT THE LAW AND PROCEDURE MU ST BE OF A FAIR, JUST AND REASONABLE KIND. THE DOCTRINE ENSURES A FAIR HEARING AND FAIR JUSTICE TO BOTH THE PARTIES. UNDER T HIS DOCTRINE, BOTH THE PARTIES HAVE THE RIGHT TO SPEAK. THE AIM OF THIS PRINCIPLE IS TO GIVE AN OPPORTUNITY TO THE PARTIES TO DEFEND TH EMSELVES. ITA NO. 158/ASR/2020 BAWA BRAHM DEV JI TRUST V. CIT(E) 4 BEFORE THE COURT, BOTH THE PARTIES ARE EQUAL AND ARE ENTITLEMENT OF EQUAL OPPORTUNITY TO REPRESENT THEM. IF THE ORDER IS PASSED BY THE AUTHORITY WITHOUT PROVIDING THE REASONABLE OPPOR TUNITY OF BEING HEARD TO THE PERSON AFFECTED BY IT ADVERSELY WIL L BE INVALID AND SHALL BE LIABLE TO BE SET ASIDE. 6. ON THE AFORESAID DELIBERATIONS, WE ARE OF THE CONSIDER ED VIEW THAT APPELLANT COULD NOT GET PROPER AND REASONAB LE OPPORTUNITIES OF BEING HEARD TO REPRESENT ITS CASE BEFOR E THE LD. COMMISSIONER, HENCE IN ORDER TO MEET THE SUBSTANTIAL JU STICE, APPROPRIATE COURSE WOULD BE TO SET ASIDE THE ORDER IMPU GNED AND REMAND BACK THE CASE TO THE FILE OF THE LD. CIT(E) FOR A DECISION AFRESH. CONSEQUENTLY, THE CASE IS REMANDED TO TH E FILE OF THE LD. CIT(E) FOR DECISION AFRESH, SUFFICE TO SAY DUE OPPORTUNITIES OF BEING HEARD SHOULD BE GIVEN TO THE A PPELLANT. 7. WE ALSO FEEL IT APPROPRIATE TO DIRECT THE APPELLANT TO EXTEND ITS FULL CO-OPERATION AND PARTICIPATION IN THE PROCEED INGS BEFORE THE LD. CIT(E) AS AND WHEN WOULD BE REQUIRED AND IN CASE OF FURTHER DEFAULT, THE APPELLANT SHALL NOT BE SUBJECTED TO ANY LENIENCY. 8. IN THE RESULT, THE APPEAL FILED BY THE APPELLANT IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25.1 1.2020. SD/- SD/- ( N. K. SAINI ) (N.K.CHOUDHRY) VICE PRESIDENT JUDICIAL MEMBER ITA NO. 158/ASR/2020 BAWA BRAHM DEV JI TRUST V. CIT(E) 5 GP/SR.PS. COPY OF THE ORDER FORWARDED TO: (1) APPELLANT (2) THE RESPONDENT (3) THE CIT (A) (4) THE CIT CONCERNED (5) THE SR DR, I.T.A.T., AMRITSAR TRUE COPY BY ORDER